Assessing Rational Basis

I’ve been thinking through the broader implications of the opinion in Shelby County. One thing that I find frustrating is the Court did not specify the standard of review and provided scant support for the proposition that each state is entitled to equal sovereignty with respect to federal legislation. The cited cases (aside from dicta in Northwest Utility) do not support that claim. The Fifteenth Amendment was definitely not ratified on that basis (some states in the South were required to ratify it as a condition for readmission.) And, as the dissent points out, other Acts of Congress do treat state authority differently.

On the other hand, this may just boil down to the showing that you think Congress needs to treat state authority differently. Let’s take a simple example. Suppose Congress passes a law that bars every state except Rhode Island from doing something. Why? Because one of Rhode Island’s senators is a powerful chair or holds the decisive vote. Would that statute be upheld? I doubt it. A court would probably say it’s irrational.

But is it irrational? A legislator might well say that getting a law in 49 of the 50 states is better than 0/50. If exempting a state government is the price, then fine. Something similar was said about Section 4 of the Voting Rights Act. The old coverage formula was not updated, the argument went, because it would be politically impossible to write a new one. Better to preserve the status quo than have no pre-clearance remedy at all (though that’s where we are now anyway). Assuming that the Court applied rational basis scrutiny, though, this reason is not a valid one.